00/00/86
Clean Air Act Compliance / Enforcement Guidance Manual -- Chapter
Four
CHAPTER FOUR
Documentation of Evidence
Chapter Contents Page.
1 Introduction 4-1.
2 Inspection File Review 4-3.
Controlled Identification of Sample 4-3.
Exhibit 4-1: Custody Seal 4-5.
Exhibit 4-2: Chain-of-Custody Record 4-6.
3 Review of Adequacy of Evidence 4-9.
Initial Review of the Inspection File 4-9.
Contents of an Inspection File 4-10.
Additional Sources of Documentation 4-13.
Further Processing of the Inspection File--
Enforcement Case Review 4-13.
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CHAPTER FOUR
1 Introduction
Upon completion of an inspection, enforcement inspectors are required to
organize the documentary evidence into an inspection file. An inspection
file may actually consist of two separate files--a nonconfidential file and
a confidential business information ( CBI ) file.
Information gathered during a CAA inspection that has not been declared CAA
CBI is organized by the inspector into a package referred to as the
nonconfidential inspection file. This file contains the inspector's report,
all forms, and nonconfidential evidence. Once compiled, the file is sent to
the enforcement personnel who review it to determine if it warrants
enforcement action.
Information gathered during an inspection that has been declared CBI is
organized by the inspector into a package referred to as the CBI inspection
file. When an inspector returns with information that has been declared
confidential, the information is given to the Document Control Officer
( DCO ). In addition, the inspector also informs the officer of any
physical samples that were declared confidential. Physical samples are
assigned a Document Control Number by the control officer who, in turn,
notifies the laboratory of this number. ( The Document Control Number is
used by laboratory personnel in completing the chain-of-custody and
laboratory analysis forms ). Once CBI material has been logged in by the
control officer, review of the information by enforcement personnel must be
in accordance with the procedures prescribed by the control officer.
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CHAPTER FOUR
2 Inspection File Review
To ensure the validity and probative value of documentary evidence for an
administrative or judicial enforcement proceeding, enforcement personnel
must review the evidence for objectivity, adequacy, and proper
identification. In some instances, the enforcement personnel may request an
Enforcement Case Review, which could include an interpretation of laboratory
test results. In all cases, it must be verified that all procedural
safeguards were implemented.
Controlled Identification of Sample
An important aspect of any review is the determination that samples were
properly collected and accurately and completely identified.
Whenever a sample is taken, a Collection Report ( EPA Form 3540-7 ) is
completed describing the sample collection process. Information includes:
o Type of sample;
o Sample number, subsample number;
o Date of collection;
o Collection method;
o Description of sample;
o Duplicate samples, if provided; and
o Description of procedures for sealing sample.
When a facility claims that samples or documents are confidential, the
facility must complete a Declaration of Confidential Business Information.
Information contained on the declaration includes:
o EPA Regional Office address;
o Date of declaration;
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o Name, title, and address of firm and individual making the
declaration;
o List, by title or description, of all information claimed as CBI;
and
o Name and title of inspector.
If the facility claims that the information is confidential, EPA must follow
the CBI procedures. ( See Chapter Eleven ).
Samples that are to be used as evidence must be sealed with EPA seals, which
are placed on sample containers by the inspector ( see Exhibit 4-1 ). In
addition, an accurate written record must be maintained to trace the
possession of each sample from the moment of collection through its
introduction as evidence. Therefore, transfer of all samples from the
inspector to other authorized persons must be recorded on an EPA Chain-of-
Custody Record, which contains the following information ( see Exhibit
4-2 ):
o Site location;
o Station location;
o Date and time of collection;
o Sample analysis required;
o Sampler's name;
o Remarks; and
o Accepting/relinquishing samples.
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Note to users of the computer based version of this document:
The following exhibits are found only in hard copy versions of this
document:
Custody Seal, p. 4-5
Chain of Custody Record, p. 4-6 and 4-7
CHAPTER FOUR
3 Review of Adequacy of Evidence
Initial Review of the Inspection File
Enforcement personnel must review the inspection file with the following
considerations in mind:
o Adequacy of the documentation;
o Significance of the violation in terms of EPA's enforcement
objectives ( see Chapter Five ); and
o History of violations by the firm. ( History may be obtained from
the Compliance Data System ( CDS ) and the regional case files ).
The purpose of the review is to develop a recommendation whether or not to
initiate an enforcement action.
Adequacy of the Documentation
The initial phase of the review should focus on two aspects of the
documentation:
o That all necessary documentation and samples have been provided; and
o That the evidence is adequate to establish the elements of the
violation as indicated by the results of the inspection and other
information.
In some instances, review will indicate the possibility of additional
violations that the file does not document. In such case, the Regional
Office should obtain the additional documentation. This may require further
consultation with the inspector or forwarding the file to Headquarters for
an enforcement case review. When a violation is discovered that is
unrelated to the initial suspected violation, the new violation should be
pursued as a new action.
OMITTED PAGES 4-5 THROUGH 4-8 CUSTODY SEAL AND CHAIN OF CUSTODY RECORD
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Contents of an Inspection File
Depending on the level of inspection ( see Chapter 3 ) and the availability
of other forms of information, an inspection file may contain some or all of
the following items:
o Project Plan. The plan should be reviewed to determine that it
accurately reflected objectives, scope, logistics, and schedules for
the inspection. Inspectors should be prepared to explain the
rationale for the inspection plan and any deviations from the
original plan.
o Inspection Report. The report should be reviewed for factual
accuracy, professional judgments, objectivity, and
comprehensiveness.
o Custody Records. There should exist a complete inventory of sample
tags/seals ( Exhibit 4-1 ), chain-of-custody records ( Exhibit 4-2 ),
and related material that demonstrates the chain of custody and
proper identification of all samples.
o Laboratory Analyses. Test results from any laboratory analyses
should be reviewed for custody, methods, quality control, and proper
identification.
o Declaration of Confidential Business Information. The declaration
should be reviewed for signatures, dates, and a complete listing of
all documents and data for which CBI was claimed.
o Copy of applicable regulations, permits, orders, etc.
o Oral or written admissions by the source as to control, ownership,
or operation of the facility; applicability of regulations, etc. in
response to Section 114 letters or from other sources.
o State and local records showing name of corporation, state of
incorporation; tax records showing payment of taxes for facility;
etc.
o Financial service records, publications such as Moody's and Standard
and Poor's often list assets.
o Securities and Exchange Commission Forms 10K and 10Q.
o Profitability claims. The plant may have "lost" money while its
corporate division may have made money.
o Financial service reports and state files may show where the
"person" resides, is incorporated, and does business.
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o Source technical data from which EPA engineers can calculate
relevant data ( e.g., size of boilers ).
o Maps showing location of source.
o State or previous EPA inspections of facility.
o Search of state/EPA records showing absence of variance provision.
o NOV Issued in SIP Cases
-- Postal service return receipt signed by source representative.
All NOVs should be sent certified.
-- Official file copy of NOV showing date mailed or hand-served.
o Violations 30 Days After NOV
-- State or EPA inspections showing violations; stack test visible
emission, or emission factor calculation reports for tests done
after 30-day period.
-- Source admissions; response to Section 114 letter or other
correspondence, oral statements in meetings, conferences, etc.
-- Source data indicating operation of plant in the same fashion (
e.g., same coal, same method of operation, same lack of
controls ) after 30-day period as before.
o Affidavits. Affidavits are sworn statements taken by the inspector
that relate to personal first-hand knowledge of a potential
violation. Affidavits may be used to substantiate a violation or to
establish the circumstances surrounding a violation. The person
making the affidavit must sign it and be able to verify personally
the facts contained in the statement.
The objective of an affidavit is to obtain a clear and concise
written record of factual information relating to a suspected
violation. The oath taken by the person making the affidavit serves
to substantiate the truth of the statement. Affidavits may be used
to verify the dates obtained from a facility's records ( e.g., the
date of emissions ). Review should emphasize the admissibility of
the affidavit in court ( i.e., whether the affidavit was properly
executed and whether it contributes valid evidence to any
contemplated proceeding ). The affidavit itself should contain the
following:
-- Identity of the affiant;
-- The reason why the affidavit was taken;
-- The pertinent facts in a simple narrative style, arranged in
chronological order; and
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-- A concluding paragraph indicating that the affiant read and
understood the statement.
In addition, any corrections made to the final copy must be
initialed by the affiant.
o Statements. Statements are similar in most respects to affidavits
except that statements are not taken under oath. Although an
unsworn statement does not carry the same evidentiary weight in
court, statements are taken for the same reasons and under the
same procedures as affidavits. An important use for statements is
verification of data collected during an inspection. For example,
a statement may be obtained from a facility representative that
indicates the date of an exceedance. Review should verify the
person's identity and the truth of the statement evidenced by a
signature or some other written or verbal acknowledgment.
o Printed Matter. Brochures, literature, labels, and other printed
matter may provide important information regarding a firm's
conditions and operations. These materials may be collected as
relevant documentation. All printed matter should be identified
with the date, the inspector's initials, and related sample
numbers.
o Photographs. The documentary value of photographs ranks high as
admissible evidence. Clear photographs of a relevant subject,
taken in proper light and at proper lens setting, provide an
objective record of conditions at the time of inspection. Review
must ensure that the photographs are clear, objective, and
properly identified. The photographs should be identified by
location, purpose, date, time, inspector's initials, and related
sample number. This information should be recorded on the
photographs, or in the inspector's field notebook, or both.
o Drawings and Maps. Schematic drawings, maps, charts, and other
graphic records can be useful in supporting violation
documentation. They can provide graphic clarification of site
location relative to height and size of objects, and other
information that, in combination with samples, photographs, and
other documentation, can produce an accurate and complete evidence
package.
Review should ensure that drawings and maps are simple and free of
extraneous details. Basic measurements and compass points should
be included to provide a scale for interpretation.
o Mechanical Recordings. Records produced by an electronic or
mechanical apparatus are admissible in federal court. Review of
charts, graphs, and other "hard copy" should ensure relevance and
identity. The data collected should be identified by date of
collection, inspector's initials, and related sample number.
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Additional Sources of Documentation
Frequently, a complete review of the file will indicate the need for
additional information. In some cases, this information will be provided by
subsequent reports. If not, enforcement personnel should seek to obtain the
additional information or elaboration from the most knowledgeable source.
Additional sources of documentation include:
o Inspector's Narrative Report;
o Inspector's Field Notebook; and
o Follow-up inspections and requests for information.
Further Processing of the Inspection File--Enforcement Case Review
Once the investigative file has been initially reviewed, further case
development may be necessary at Headquarters. If so, the file should be
sent to the appropriate Headquarters Office. Aspects of the case that could
require further processing include:
o Failure to comply with recordkeeping and reporting requirements;
o Scientific review to determine the significance of any discrepancy
in chemical composition, toxicity, or risk assessment;
o Relationship of the suspected CAA violation to other federal
environmental laws;
o New program elements for which policy interpretations must be
established; and
o New or existing programs in which information is normally kept on
file at Headquarters.
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